At a time when its legitimacy as an apolitical institution is being questioned, the Supreme Court has been dragged into partisan disputes about when and how ballots should be counted in an election upended by the COVID-19 pandemic. Too often it has responded in ways that will make it harder for Americans to vote.
On Oct. 26, the court blocked a federal judge's order that Wisconsin count ballots mailed by Election Day but received up to six days later. Earlier in October, the court reinstated South Carolina's requirement that absentee ballots be signed by both a voter and a witness, and it suspended a decision by a federal court in Alabama allowing election officials to offer curbside voting for people with disabilities.
To be fair, the court has permitted some accommodations. On Oct. 28, for the second time, it refused to disturb a ruling by Pennsylvania's Supreme Court that extended the deadline for mail ballots to Nov. 6. It also let stand lower court decisions affirming a move by election officials in North Carolina to set an even more generous deadline of Nov. 12 for mailed ballots. (New Justice Amy Coney Barrett didn't participate in the Oct. 28 rulings because she didn't have time to study documents in the cases, according to the court.)
But in the Pennsylvania case, Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, ominously suggested that the court could revisit the issue of the extended deadline later and noted that Pennsylvania officials plan to segregate ballots received after 8 p.m. on Election Day. If the Supreme Court reverses itself, it would disenfranchise voters who cast their ballots in good faith and with the acquiescence of the court.
Alito argued that the Constitution vests in "state legislatures, not state courts," the authority for setting the rules for federal elections. Chief Justice John G. Roberts Jr. disagreed, and in his opinion in the Wisconsin he case drew a distinction between Pennsylvania, where a state Supreme Court was interpreting its own constitution, and Wisconsin, where the issue was "federal intrusion on state lawmaking processes."
Ideally, state legislatures would respond creatively to the voting challenges posed by COVID-19. But even in the absence of legislation, state and federal judges must be able to act, particularly in a health emergency, to protect the right to vote, which the Supreme Court has treated as fundamental. Congress also should consider using its authority to override the states on the "times, places and manner" of federal elections by standardizing procedures for mail ballots and making sure any vote postmarked by Election Day can be counted.
Some of the court's actions came early enough to put voters on notice that they should vote in person (assuming it's safe for them) or deliver their ballots by hand rather than place them in the mail. But some voters surely will be disenfranchised as the result of the conservative justices' cramped approach to the ultimate exercise of citizenship.
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